The first thing we do, let’s kill all the lawyers.
— King Henry VI, Part II, Act IV, Scene II
Everyone knows that line from Shakespeare. What they forget is that it’s said by one of a group of conspirators who are plotting to overthrow the king and put another man on the throne.
The conspirators are the comic relief in this play. They don’t speak in iambic pentameter, and the would-be king is a delusional man whose claim to the throne is absurd. Even his followers think he’s an idiot – or at least the butcher, who gets this line, does.
That is, it was a lawyer joke. I bet it got a huge laugh from the groundlings and maybe even from the rich folks when the play premiered.
I’ve seen it on t-shirts – worn by lawyers. Lawyers, in fact, are the best source of lawyer jokes:
Q: What do you call 5000 dead lawyers at the bottom of the ocean?
A: A good start!
Q: Why don’t sharks attack lawyers? A: Professional courtesy.
The Devil approaches a lawyer and says, “I’ll make you the wealthiest, most celebrated and admired lawyer in the nation. All you have to do to attain this status is pledge to me the souls of your wife and children.”
The lawyer ponders on this for a few moments, then looks up and says, “OK, but what’s the catch?”
It seems everyone hates lawyers, even other lawyers. I’d be willing to bet that some lawyer in a “white shoe” law firm – a long-established firm that represents wealthy people and big corporations – coined the term “ambulance chaser” to describe lawyers who file negligence suits for people injured in accidents.
People consider lawyers dishonest and think a “good lawyer” is one who will break the rules for you. And everyone hates the idea that lawyers can win a case on a “technicality” – except, of course, their clients.
In fiction, when lawyers aren’t crooks, they’re pompous, stuffy, and arrogant.
I’d like to take issue with all those descriptions. Well, maybe not arrogant. But the rest of them.
In my experience, most lawyers are honest. Despite what people think – and what a good joke it makes – legal ethics isn’t an oxymoron. But the rules that govern lawyers are different from those that lay people – non-lawyers – play by.
For example, in the U.S. (or the U.K., or a number of other countries), if I knew someone committed murder, I would feel a moral obligation to turn them in. But if I were that person’s lawyer, I would have the duty to defend them regardless of their guilt.
Good criminal defense lawyers know that most of their clients are guilty – that is, they’re not naïve. But at the same time, they believe they’re entitled to good representation. The real bad lawyers are the ones that don’t work hard for their clients, but just go through the motions to get paid.
James Simon Kunen, who worked as a public defender in Washington, D.C., wrote a good book on this subject called How Can You Defend Those People? It’s the best explanation of how good criminal defense lawyers think I’ve ever seen.
While a lawyer’s primary duty is to their client, there’s always a little tension, since a lawyer is also an officer of the court and swears an oath to uphold the law. So the duty is to represent the client fully, but to follow the rules. If the law says you have to turn over evidence or notify the other party of something, you have to do it. And you can’t knowingly let a witness lie in a court hearing.
(Failure to turn over evidence to the defense attorney recently brought down a prosecutor turned judge here in Texas, after some committed lawyers and the Innocence Project managed to prove he’d withheld evidence from the defense in a case where an innocent man spent 25 years in prison. Texas Monthly has a thorough wrap-up of the case.)
When it comes to duty to the client and duty to the system, the same general rules about duty to the client and duty to the court apply in both civil and criminal cases. At the heart of all this is what is called the adversary system: the idea that each side in a dispute has the right and obligation to present their case – within the rules – to a neutral fact finder (judge or jury), who will determine the outcome.
Most U.S. lawyers I’ve known believe that the adversary system is the best possible way to settle disputes. They know the system is imperfect, that some parties to litigation have more money or better lawyers, but they still believe that, on the whole, this is the best way to resolve a dispute.
And when I say they believe it, I mean they sincerely believe it, whether they work for legal aid or one of the richest law firms in the country. Law professors may write treatises questioning whether the adversary system leads to just outcomes, but the average lawyer doesn’t question this tenet.
So lawyers, when they talk about their clients in public, are always advocating for them. Some of what they say may sound absurd – especially when it’s obvious to everyone that their client did cause the massive oil spill in the Gulf of Mexico (just as an example) – but their job is to be their client’s representative even if their client is a full-fledged bad guy.
Back when I was in law school, I interned in the office of the juvenile public defender in Austin. My boss described his role as the lawyer for kids charged with crimes in old fashioned western terms: a gunslinger, a hired gun.
I think that image resonates with lots of lawyers.